On June 21, 2019, Justice Grays of the Queens County Commercial Division issued a decision in SBA Monarch Towers 1, LLC v. Hirakis, 2019 NY Slip Op. 32576(U), granting a mandatory injunction requiring a defendant to sign an appication to the City Department of Buildings, explaining:

In order to obtain a preliminary injunction, plaintiff SBA had to show (1) a likelihood of ultimate success on the merits, (2) irreparable injury if provisional relief is withheld, and (3) a weight of the equities in his favor. The plaintiff successfully carried this burden.

In regard to the first requirement, the plaintiff established a likelihood of ultimate success on the merits by making a prima facie showing that it can prove one of its causes of action. The site lease contains clauses which allow the tenant to upgrade the antenna facilities at any time during the term of the lease and to have access to the premises. As specifically pertains to the instant motion, section l(b) of the site lease provides that Landlord agrees to cooperate with tenant in obtaining at Tenant’s expense, all licenses and permits or authorizations required for Tenant’s use of the premises from all applicable government and/or regulatory entities. Section l(b) further provides that during the Initial Term or any Renewal Term of this Lease, Landlord agrees that it will not interfere with Tenant’s efforts to secure other licenses and permits or authorizations that relate to the property.” Moreover, the implied covenant of good faith and fair dealing in every contract includes the promise that no party shall do anything which will have the effect of preventing the other party from receiving the fruits of the contract.

In regard to the second requirement, this Court has previously found that the defendant’s alleged interference with the plaintiffs rights under the site lease could jeopardize the reliable operation of the cellular communications facility and potentially impact 911 emergency service from the site. Moreover, irreparable injury has been defined as a continuing harm resulting in substantial prejudice caused by the acts sought to be restrained if permitted to continue pendente lite. In the case at bar, the defendant’s refusal to sign the DOB application effectively threatens to make the leased site useless to the plaintiff. Moreover, the requirement of irreparable harm may be met by proof that the defendant’s act threatens to destroy an ongoing business concern, and SBA made such a showing.

In regard to the third requirement, the plaintiff demonstrated that the irreparable injury to be sustained by it is more burdensome than the harm that will be caused to the defendant through imposition of the injunction. The defendant did not persuade the court that his refusal to sign the application is based on a genuine fear that he faces penalties because it contains false information. The defendant did not specifically identify any false statements on the application, even though he was sent a copy of it, and he did not show that he attempted to cooperate in the drafting of the application to ensure its accuracy. Moreover, the plaintiff, who is aware that the defendant is monitoring the application process, has engaged Construction Permit Services Corp. to manage the permitting process.

The Court is mindful that a mandatory injunction, which is used to compel the performance of an act, is an extraordinary and drastic remedy which is rarely granted and then only under unusual circumstances where such relief is essential to maintain the status quo pending trial of the action. Under all of the circumstances of this case, where the existence of an ongoing business is threatened, the defendant should be required to sign the DOB application.

(Internal quotations and citations omitted) (emphasis added).

It is common in commercial litigation that parties seek equitable relief such as injunctions, attachments or the appointment of a temporary receiver in order to preserve assets or maintain the status quo when money damages will not make them whole at the end of a litigation. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding seeking–or opposing–such relief.